SEC Form SC 13D/A filed by Cardlytics Inc. (Amendment)

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

September 19, 2023

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☒.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.

1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.

Item 4 is hereby amended to add the following:

On September 19, 2023, CAS Investment and certain of its affiliates (the “Investors”) entered into a Cooperation Agreement (the “Cooperation Agreement”) with the Issuer. Pursuant to the Cooperation Agreement, the Issuer increased the size of the board of directors of the Issuer (the “Board”) to nine and appointed Alex Mishurov (the “New Director”) as a Class I director of the Issuer with a term expiring at the Issuer’s 2025 annual meeting of stockholders (the “2025 AGM”). In addition, the Issuer agreed to appoint the New Director to the Nominating and Governance Committee, the Compensation Committee and the Transaction Committee of the Board. The Cooperation Agreement also provides that in the event the New Director is unable to serve for the remainder of his term, the Issuer and the Investors will designate a mutually agreed upon replacement director, provided that the replacement director will not be the Investors or an affiliate, associate or employee of the Investors or any other person that files a Schedule 13D with the Securities and Exchange Commission with respect to the Issuer.

Pursuant to the terms of the Cooperation Agreement, the Investors agreed to vote all of their shares of the Issuer in accordance with the Board’s recommendations on all proposals or business that may be the subject of stockholder action at stockholder meetings held during the Standstill Period (as defined below), except (i) if either Institutional Shareholder Services Inc. or Glass Lewis & Co., LLC recommends against the Board’s recommendation for a proposal (other than with respect to director elections), the Investors may follow such alternative recommendation, and (ii) the Investors may vote in their sole discretion with respect to any publicly announced proposals required in connection with certain business combination or extraordinary transactions involving the Issuer or in connection with the implementation of takeover defenses not in existence as of the date of the Cooperation Agreement.

The Investors also agreed to abide by certain customary standstill provisions with the Issuer until the earlier of (i) October 1, 2024 and (ii) the date that is 30 calendar days prior to the deadline for the submission of stockholder director nominations for the 2025 AGM (the “Standstill Period”).

The foregoing description of the Cooperation Agreement is qualified in its entirety by reference to the full text of the Cooperation Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

Items 5(a)-(c) are hereby amended and restated to read as follows:

The aggregate percentage of Shares reported owned by each person named herein is based upon 37,724,209 Shares outstanding, which is the total number of Shares outstanding as of July 31, 2023, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 1, 2023.

Percentage: Approximately 9.7%

Percentage: Approximately 4.6%

Percentage: Approximately 14.4%

Percentage: Approximately 14.4%

Percentage: Approximately 14.4%

The filing of this Schedule 13D shall not be deemed an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owners of any securities of the Issuer that he or it does not directly own. Each of the Reporting Persons specifically disclaims beneficial ownership of the securities reported herein that he or it does not directly own.

Item 7 is hereby amended to add the following exhibit:

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: September 19, 2023